789 F.

2d 850

UNITED STATES of America, Plaintiff-Appellee,

v.
Irej Alex MALEKZADEH, Defendant-Appellant.
No. 86-3232
Non-Argument Calendar.

United States Court of Appeals,

Eleventh Circuit.
April 29, 1986.

Stephen N. Bernstein, Gainesville, Fla., for defendant-appellant.

W. Thomas Dillard, George Blow, III, Lennard Register, Asst. U.S.
Attys., Tallahassee, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of
Florida.
Before GODBOLD, Chief Judge, HILL and ANDERSON, Circuit Judges.

BY THE COURT:
1

Defendant appeals from an order entered by the district court denying a motion
for revocation of a detention order issued by a United States Magistrate.

Defendant is charged with numerous violations of 21 U.S.C. Sec. 841, and

other narcotics violations, all offenses for which a maximum term of
imprisonment of ten years or more is described in the Controlled Substances
Act. Thus he fell within 18 U.S.C. Sec. 3142(e):

3
Subject
to rebuttal by the person [accused], it shall be presumed that no condition or
combination of conditions will reasonably assure the appearance of the person as
required and the safety of the community if the judicial officer finds that there is
probable cause to believe that the person committed an offense for which a
maximum term of imprisonment of ten years or more is prescribed in the Controlled
Substances Act, the Controlled Substances Import and Export Act, section 1 of the

Act of September 15, 1980, or an offense under section 924(c) of title 18 of the
United States Code.
4

Defendant first appeared on Thursday, March 13, 1986. He was accompanied

by retained counsel. The government moved for continuance, and a hearing was
scheduled for March 17, the Monday following. No objection was made by
defendant or his retained counsel.

At the March 17 hearing defendant contended that the hearing could not be
held because under 18 U.S.C. Sec. 3142(f) a continuance upon motion by the
government may not exceed three days. Section 3142(f) provides in relevant
part:

6 hearing shall be held immediately upon the person's first appearance before the
The
judicial officer unless that person, or the attorney for the Government, seeks a
continuance. Except for good cause, a continuance on motion of the person may not
exceed five days, and a continuance on motion of the attorney for the Government
may not exceed three days.
7

The district court, relying on language in a Ninth Circuit case, United States v.
Al-Azzawy, 768 F.2d 1141, 1145 (9th Cir.1985), held that it was not a
"material" error to exceed the three day time limit and hold the hearing on the
fourth day in order to avoid a Sunday hearing. The district court went on to find
that the rebuttable presumption of Sec. 3142(e) was triggered, and that
defendant had not adduced sufficient evidence to rebut the presumption that no
condition or combination of conditions would reasonably assure his appearance
and the safety of the community. Thus, the district court ordered that defendant
remain detained pending trial.

Because we affirm the judgment of the district court on other grounds, we

decline to address the "material" violation issue upon which the district court
relied.

On the facts of this case, we hold that the defense implicitly requested a
continuance to the Monday hearing, and that such four day continuance was
within the statutorily provided continuance of five days on motion of a
defendant. Therefore, we hold that there was no violation of the statute's time
constraints.

10

At his first appearance on Thursday afternoon, March 13, 1986, the defendant
was accompanied by retained counsel, and appeared before the judge in open

court. Government counsel was also present and moved for pretrial detention
and a continuance of the hearing. The judge set the hearing for 10 a.m. the
following Monday morning, March 17, 1986. Neither the defendant nor his
retained counsel objected. We hold that the acquiescence of defendant and his
retained counsel is deemed to be a request that the hearing be continued until
Monday morning in order to avoid a Sunday afternoon hearing. Section 3142(f)
provides for a continuance on motion of the defendant not to exceed five days.
The continuance in the instant case was only four days, and thus was well
within the statutorily prescribed time limit.
11

United States v. Hurtado, 779 F.2d 1467 (11th Cir.1985), is not to the contrary.
Hurtado holds that the statute makes no provision for a voluntary waiver by the
defendant of the five day maximum time period. Id. at 1474 n. 7. However, the
instant case does not involve any attempt by the defendant to extend the
continuance beyond the five day maximum limit; as indicated above, the
defendant here implicitly requested a continuance for four days as he was
statutorily entitled to do. It might be argued that the strict construction of this
statute mandated by Hurtado should persuade this court to require a formal
motion for continuance on the part of this defendant. We disagree. While
Hurtado does mandate that the statute be strictly construed, it does not require
that it be construed in contravention of common sense. In the context of this
case, common sense clearly tells us that the defense counsel implicitly
requested that the hearing be continued until Monday morning.

12

Because we conclude that there was no violation of the time constraints of the
statute and because we conclude that the district court did not err in its decision
on the merits of the release issue, the judgment of the district court is

13

AFFIRMED.